19 March 2014

Landmark Deprivation of Liberty Decision in the Supreme Court

P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) (MIG & MEG) [2014] UKSC 19

Analysis by Robert Sherman 

In this landmark decision by the Supreme Court, the appeals in both cases were allowed and it was determined that P, MIG and MEG were being deprived of their liberty.

The key matters and the conclusion can be found in the judgment of Lady Hale as follows: 

45.     In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

46.     Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.


47.     For that reason, I would reject the “relative normality” approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading. To some extent this approach was premised on the relevance of the reason for and purpose of the placement (para 76), derived from the House of Lords decision in Austin, and later disapproved by the Grand Chamber. It is in any event inconsistent with the view that people with disabilities have the same rights as everyone else. I have much more sympathy with the “relative normality” approach in P and Q, where the lives which MIG and MEG were living were compared (by the majority) with the ordinary lives which young people of their ages might live at home with their families. This seems both sensible and humane. But the fact remains that the lives which MIG and MEG were leading were not the same as those which would be led by other teenagers of their age. Their comparative normality in the sense of their “home-like” quality does not answer the question of whether in other respects they involved a deprivation of liberty for which the state was responsible.

 48.     So is there an acid test for the deprivation of liberty in these cases? I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required. Ms Richards is right to say that the Guzzardi test is repeated in all the cases, irrespective of context. If any of these cases went to Strasbourg, we could confidently predict that it would be repeated once more. But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus?

49.     The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.

 50.     The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach.

This decision is likely to have an impact right across the health and social care spectrum. The history illustrates the variable enforcement of the DOL safeguards by both local authorities and NHS Trust. This has ranged from almost no engagement at all to the full consideration of best interests including a careful analysis of the restrictions on the person concerned.

This decision needs to considered in the context of the following:

(a)        the pre-existing lack of DOL safeguards for those not in social or health residential environments;

(b)        severe austerity cuts across both health and social care budgets;

(c)         the increasing likelihood that it will much more difficult to sustain the stark difference of free at the point of delivery (health) and means tested (social), in particular with the policy of working in a more  multidisciplinary manner;

(d)        the recent news that Britain is accused of breaching European treaty with austerity cuts to councils;

(e)        comments set out in the report of the House of Lords Select Committee on the MCA;

(f)         an increasing population of older people with various forms and intensity of dementia; and

(g)        the upcoming  we are currently facing substantial changes as set out in the Adult Social Care Bill.

All professionals and practitioners in healthcare and social care are clearly going to be living in interesting times for some time. The challenge upon all professionals and practitioners in healthcare and social will be to effectively manage the increasing duties and responsibilities


The full judgment can be found at http://supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf